The Justice Department concluded in a Jan. 6 memo to the White House counsel that the Senate's "pro forma" sessions don't actually interrupt a congressional recess.
Because they don't, the president was entitled to exercise his constitutional power to make recess appointments, the department concluded.
President Obama used that authority last week to name Richard Cordray director of the newly formed Consumer Financial Protection Bureau. He also made additional recess appointments to the National Labor Relations Board.
"The Senate could remove the basis for the president's exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted," says a memo from DOJ's Office of Legal Counsel.
The memo was released today in response to calls for a fuller explanation of the legal basis on which the White House acted.
The question, the Justice Department says, is a practical one: During these pro forma sessions, is the Senate actually able to provide advice and consent to nominations? Obviously not, the memo says, which makes them a "recess" in name only, and not in substance.
Even so, it says, "the question is a novel one, and the substantial arguments on each side create some litigation risk for such appointments."